LINWOOD R. LEARY, ZEBEDEE
LEARY, SHIRLEY LEARY STATEN,
HAROLD J. R. LEARY, SANDRA
LEARY GRISSOM, WILBUR LEARY,
FREDERICK L. GALLOWAY, VIVIAN
L. SMITH, LAURA MARIE ELLIOTT,
and RUTH L. ASBURY,
v. Pitt County
No. 89 CVD 1966
N.C. FOREST PRODUCTS, INC.,
CORBETT L. HOLLAND, OLIVER
WRIGHT LEARY, ELMER LEARY,
BARBARA T. LEARY and MAMIE
James & Sutton, P.A., by David C. Sutton, for defendant-
Oliver Wright Leary, pro se.
Defendant-appellant Oliver Wright Leary appeals from an order
denying his Rule 60(b)(6) motion seeking to set aside the 1993 sale
of property to satisfy a judgment obtained against him. This is
the second appeal involving defendant-appellant's desire to set
aside the sale. The factual background is as follows: In casenumber 89 CVD 1966, defendant N.C. Forest Products, Inc. obtained
a judgment against defendant-appellant. To satisfy the judgment,
in 1993, the Sheriff of Pitt County sold property in which
defendant-appellant owned an interest. Defendant-appellant filed a
separate action in 2000 (00 CVS 3085) to set aside the sale. The
superior court dismissed the action and defendant-appellant
appealed the dismissal to this Court. In affirming the dismissal,
this Court stated that defendant-appellant was not allowed to
collaterally attack the order confirming the execution of the sale.
Rather, defendant-appellant should have filed a motion in the
original case, 89 CVD 1966. Leary v. N.C. Forest Prods., Inc., 157
N.C. App. 396, 403-4, 580 S.E.2d 1, 5-6, affirmed, 357 N.C. 567,
597 S.E.2d 673 (2003).
On 2 December 2003, defendant-appellant filed a motion in the cause in the original case, 89 CVD 1966, pursuant to Rule 60(b)(6) of the North Carolina Rules of Civil Procedure seeking to set aside the Sheriff's sale. By order filed 26 July 2004, the district court denied the motion, concluding that defendant-appellant did not file his Rule 60(b) motion for relief within a reasonable time and did not plead a defense to the merits of the preceding lawsuit and judgment. Defendant-appellant appeals.
Defendant-appellant contends that the trial court erred in denying his Rule 60(b)(6) motion. We disagree.
Under N.C.R. Civ. P. Rule 60(b)(6), a court cannot set aside a judgment pursuant to this rule without a showing (1) that extraordinary circumstances exist and (2) that justice demandsrelief. Thacker v. Thacker, 107 N.C. App. 479, 481, 420 S.E.2d 479, 480, disc. review denied, 332 N.C. 672, 424 S.E.2d 407 (1992). Further, the remedy provided by Rule 60(b)(6) is equitable in nature and is directed to the discretion of the trial judge. This Court will not disturb such a discretionary ruling without a showing of an abuse of that discretion. Id. at 482, 420 S.E.2d at 480-81 (citation omitted).
Here, defendant-appellant filed his motion to set aside the sheriff's sale ten years after the sale of the property and he did not allege any extraordinary circumstances sufficient to invoke an equitable remedy under Rule 60(b). Defendant-appellant has failed to show the trial court abused its discretion in refusing to set aside the order under Rule 60(b)(6). Accordingly, the trial court's order is affirmed.
Judges MCGEE and LEVINSON concur.
Report per Rule 30(e).
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